Terms and Conditions
Eluma Software License and Terms and Conditions of Use
1. Acceptance of these Terms and Conditions; Restrictions on Use.
The Terms and Conditions set forth herein are legally binding terms and restrictions on your use of the Eluma software and services and all of the content and applications offered from time to time by, on or through the applications, software or services (collectively the software, applications and services offered from time to time are referred to herein as the “Software”). By using the Software, you agree to be legally bound by these Terms and Conditions and the Eluma Privacy Policy, which is incorporated herein by reference.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS DO NOT USE THE SOFTWARE. In addition to complying with these Terms and Conditions, you agree to comply with any and all applicable laws with respect to your use of the Software.
2. Eligibility.
Use of the Software is void where prohibited by law. By using the Software, you are representing and warranting that you (1) are a corporate entity or, if an individual, you are at least 18 years of age or older, an emancipated minor, or possess legal parental or guardian consent and (2) that you are fully able and competent to enter into and abide by these Terms and Conditions. Notwithstanding the previous sentence, you affirm that you are over the age of 13. IF YOU ARE UNDER THE AGE OF 13 DO NOT USE THE SOFTWARE.
3. Your Limited License to Use the Software.
Eluma grants to you a revocable, non-exclusive, non-transferable, non-sublicensable license to download and use the Software in accordance with these Terms and Conditions. You may only use the Software for the permitted uses described herein. All other rights in and to the Software (excluding the Content), including, without limitation, all copyright and other intellectual property rights, including any goodwill associated therewith, are retained by Eluma.
4. Content.
a. Generally. Subject to these Terms and Conditions, you and third parties are permitted to create communities in which you may include data, information, articles, news, text, pictures, images, sounds, RSS feeds, or other content which you provide through the Software (collectively referred to as the “Content”). Content shall also include any tags or comments created and included through the Software. Through its links, Eluma may share, publish and/or host the Content subject to these Terms and Conditions. All Content may be shared with the general public.
b. Your Responsibility for and Representations Regarding Contents; Prohibited Material. You acknowledge that Eluma PROHIBITS the use or inclusion of any material that infringes on any patent, trademark, service mark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right of a third party. By creating Content, you are representing that you own all proprietary rights, including without limitation copyright rights, in and to that Content or have the right to use that Content in the manner expected when it is included. If the Content contains images of people or persons, you represent that you have obtained a valid and binding release from all required parties that permits the expected use of the Content when included. You are responsible for the accuracy, completeness and quality of all Content and agree to use the Software only for lawful purposes.
You are PROHIBITED from including any unlawful, harmful, threatening, abusive, harassing, hateful, defamatory, obscene, lewd, lascivious, filthy, false, misleading, excessively violent, pornographic or racially or ethnically offensive material, or material that encourages criminal conduct, gives rise to civil liability or otherwise violates any applicable local, state, federal or international law.
c. Disclaimer and Rights Regarding Contents. Eluma does not and cannot review all Content and is not responsible for the content, accuracy, completeness, quality, or consequences of your including any Content. Notwithstanding the foregoing, Eluma reserves the right to remove, refuse to accept or edit all Content that it determines, in its sole discretion, violates or may violate any of these Terms and Conditions, the intellectual or proprietary rights of any third party, any of Eluma’s policies or is otherwise unacceptable to Eluma.
5. Retained Rights; Grant of Limited License to Eluma.
Eluma does not claim any ownership rights in any of your Content. After including your Content, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose aside from use through the Software. By including your Content, you hereby grant to Eluma a non-exclusive, royalty-free, sublicensable, worldwide license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content in order for Eluma to administer and provide the services and Software to you and third parties, as well as to promote the Services and Software. Please note that without this license, Eluma could not offer you or any third party any of the Software or services and that this license is for the limited purpose of administering such services. The license you provide to Eluma is (1) non-exclusive so you can license your Contents to anyone else; (2) royalty-free so Eluma is not required to pay you for its use of Contents pursuant to these Terms and Conditions, (3) sublicensable so that Eluma is able to use its affiliates and partners to provide services necessary for the operation of the Software, and (4) worldwide.
6. Use of Your Content by Third Parties.
In addition to granting Eluma the license described above, by including your Content, you hereby grant to each user of the Eluma Software a non-exclusive, non-transferable, non-sublicensable license to access your Content through the Software, and to use, download, modify, publicly perform, publicly display, reproduce, and distribute such Content as permitted through the functionality of the Software and subject to these Terms and Conditions; provided, however, that such third parties may only use the Content for personal use and not for commercial purposes except as specifically authorized by you in each instance. Further, by including your Content, each third-party user is agreeing to use the Content in compliance with these Terms and Conditions and all applicable laws.
7. Your User Name and Password.
Your password and user name are unique to you and should be protected from third party use. You should not let anyone else have access to your user name and password because Eluma shall have no liability or responsibility to monitor the use of the Software or inclusion of any Content under your user name and password and you may be liable for the losses of Eluma or others due to such unauthorized use.
8. Intellectual Property Rights and Use.
All content, applications and information contained in the Software, including without limitation the text, software, graphics, videos, photographs, logos, trademarks, service marks and music are owned or licensed for use by Eluma unless otherwise indicated. All rights are reserved by Eluma, and no content, applications or information from the Software may be reproduced, downloaded, disseminated, published or transferred in any form or by any means, except as permitted by these Terms and Conditions or with the prior specific written consent of Eluma in each instance. Software is copyright protected and contains proprietary information and trade secrets belonging to Eluma.
Further, (a) you will not use Software for any purpose inconsistent with the terms and conditions herein and you may not make copies of the Software other than a single copy of the software in machine-readable format for back up or archival purposes. You may make copies of the associated documents for your internal use only. You shall ensure that all proprietary rights notices on Software are reproduced and applied to any copies; (b) You shall not license, sublicense, lend, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Software or the Service available to any third party in whole or in part; (c) You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Licensed Software or the Service, access the Licensed Software in order to build a similar or competitive product or service, or authorize any third party to do any of the foregoing; (d) You agree not to cause or permit the reverse engineering, reverse assembly, or reverse compilation of the Software or otherwise attempt to derive source code from the Software; (e) except as expressly stated herein, no part of the Software may be copied, reproduced, modified, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; and (f) any future release, update, or other addition to functionality of the Software shall be subject to the terms of this Agreement.
9. Confidentiality.
You agree that Software is and contains confidential property of Eluma (“Confidential Information”). You will not use or disclose any Confidential Information except to the extent You can document that any such Confidential Information is in the public domain through no fault of Your own and generally available for use and disclosure by the general public without any change, restriction or license, or is required to be disclosed by any authority having jurisdiction so long as You provide Eluma with reasonable advance notice of such disclosure prior to its release. You recognize and agree that there is no adequate remedy at law for breach of this Section, that such a breach would irreparably harm Eluma and that Eluma is entitled to equitable relief, including, without limitation, injunctive relief with respect to any breach or potential breach, in addition to any other remedies available at law.
10. No Warranties.
TO THE FULLEST EXTENT ALLOWED BY LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, INCLUDING NON-INFRINGEMENT OF PATENTS, COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS OF OTHERS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. ELUMA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY OF THE SERVICES OR THAT THEY WILL SATISFY YOUR NEEDS.
11. Limitation on Liability.
ELUMA AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCEIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER THAT YOU OR ANY OTHER PERSON SUFFERS OR INCURS, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS RESULTING FROM ANY (1) ERRORS, MISTAKES, OR INACCURACIES IN THE SOFTWARE, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SOFTWARE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF ELUMA’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SOFTWARE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS, OMISSIONS OR INACCURACIES IN ANY CONTENT OR (7) FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ELUMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. THE LIMITATIONS ON LIABILITY SET FORTH HEREUNDER SHALL SURVIVE TERMINATION OF THIS AGREEMENT FOR ANY REASON AND BE ENFORCED TO THE FULLEST EXTENT ALLOWED BY LAW.
12. Indemnification; Attorneys’ Fees.
You hereby agree to indemnify, defend and hold harmless Eluma, and their members, managers, officers, employees and agents from and against any and all causes of action, claims, costs, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees, arising from or as a result of (1) your breach of any of these Terms and Conditions, including without limitation your breach as a result of your infringement, misuse or misappropriation of any patent, copyright, trademark, trade name or service mark, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right of a third party or (2) any claim that any of your Content caused damage to a third party. Your indemnification obligations under this paragraph will survive termination of this Agreement for any reason. If Eluma prevails against you, in whole or in part, in any action to enforce the provisions of these Terms and Conditions, whether for injunctive relief or damages or both, then in addition to all other damages or relief, Eluma shall be also entitled to recover from you the costs and expenses incurred in the successful pursuit of such action or portion thereof, including reasonable attorneys’ fees.
13. No Responsibility or Liability for Third Party Web Sites.
The Software may contain links to third party websites. The links are for convenience purposes only, and the inclusion does not imply that Eluma endorses or has reviewed or censored the content or services on these websites. Such external websites contain information, goods and services created, published, maintained or otherwise posted by third parties independent of Eluma. Eluma does not guarantee the accuracy, completeness, timeliness or quality of information, goods and services available from other websites. Use of any information or services from other websites is voluntary, and reliance on it should be undertaken only after an independent review of the accuracy, completeness, timeliness and quality and the terms and conditions of the use of such website. Eluma shall not be liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by, or in connection with, the use of, or the reliance upon, any information, content, goods or services available on or through any third party web sites.
ELUMA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SOFTWARE OR ANY LINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ELUMA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. THESE LIMITATIONS ON WARRANTIES AND LIABILITY WILL SURVIVE TERMINATION OF YOUR USE OF THE SERVICES FOR ANY REASON.
14. Term.
Except as otherwise provided herein, the rights and licenses granted to you under these Terms and Conditions shall continue for as long as you use the Software; provided, however, it will terminate if you fail to comply with any of the Terms or Conditions hereof. Eluma reserves the right, in its sole discretion, to restrict, suspend or terminate your access to and use of all or any part of the Software at any time, for any or no reason, with or without prior notice and without liability. Upon termination of your grant of rights or licenses hereunder for any reason, you will immediately cease using the Software and You shall immediately destroy or return to Eluma any copies of the Software in your possession, but the terms of this Agreement which are intended to survive termination will remain in effect.. All disclaimers of warranties, limitations of liability and indemnification provisions shall survive termination of this Agreement for any reason.
15. Location; Governing Law.
This Agreement is made under and will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Your agreement to be bound by these Terms and Conditions is deemed to have been entered into in the Commonwealth of Massachusetts and will governed by said laws, without giving effect to its choice of laws provisions. The parties will endeavor to settle amicably by mutual discussions any disputes, differences or claims whatsoever related to this Agreement. In the unlikely event that the disputes remain unresolved after amicable discussions, You expressly consent to sole jurisdiction and venue for any litigation that all dispute resolution arising from or relating to this Agreement shall be an appropriate Federal or state court located in Massachusetts. In the event any proceeding or lawsuit is brought by either party herein in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
16. Complete Agreement; Amendments.
These Terms and Conditions, the Privacy Notice and any other legal provisions provided with the Software or posted on the website constitute the complete agreement between the parties with respect to your use of the Software and supersedes all prior or contemporaneous agreements, discussions, representations and warranties, whether oral or written, with respect to the subject matter hereof. You acknowledge that no promises, representations, inducements, agreements or warranties, other than those set forth herein have been made to induce you to agree to be bound by these Terms and Conditions. Eluma may amend these Terms and Conditions from time to time. The amendments will be effective immediately upon posting the changes to the website. By using the Software or Services and/or visiting the website after any and all amendments, you agree to be bound by the amendments to these Terms and Conditions. You should review the Terms and Conditions on the website from time to time to ensure that your use of the Software or Services is in compliance with the Terms and Conditions. IF YOU DO NOT AGREE TO ANY AMENDMENT TO THESE TERMS AND CONDITIONS, YOU SHOULD IMMEDIATELY CEASE USE OF THE SOFTWARE OR SERVICES AND/OR VISITING THE WEBSITE.
17. Assignment; Sublicensing.
You may not assign, sublicense or otherwise transfer any of the rights and licenses granted to you hereunder, but Eluma may assign these Terms and Conditions without your consent to any other party.
18. Enforceability; Waiver.
If any provision of these Terms and Conditions is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provision hereof and such other provisions shall be interpreted and construed as if the invalid, illegal or unenforceable provisions had never been contained herein. Eluma’s waiver of any condition or covenant of these Terms and Conditions, or its failure to exercise a right or remedy available to it, shall not constitute a further waiver of the same or any other condition, covenant, right or remedy.
19. Export.
The Software and related technology are subject to United States Export Control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that You have the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required.
20. Miscellaneous.
Neither the rights nor the obligations arising under this Agreement are assignable by You and any such attempted assignment or transfer shall be void and without effect. In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the remaining provisions remaining in full force and effect. This Agreement constitutes the entire Agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled. Any modifications to this Agreement must be agreed in writing by both parties hereto.
BY USING THE SOFTWARE, SERVICES AND/OR VISITING THE WEBSITE, YOU REPRESENT THAT YOU HAVE READ ALL OF THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY ALL SUCH TERMS AND CONDITIONS.